Status of U.S. Army Corps of Engineers Efforts to Implement GAO's 2007 Recommendations Regarding Its Section 214 Authority
Gao ID: GAO-10-385R February 19, 2010When cities, counties, or other nonfederal public entities propose public works projects that could degrade or damage federally regulated waters and wetlands, such as road construction and sewer line construction or maintenance, they must obtain a permit from the U.S. Army Corps of Engineers (Corps) before proceeding. Under authorities delegated to the Corps from Section 404 of the Clean Water Act, the agency is responsible for regulating activities that may impact wetlands, streams, and other waters throughout much of the United States and it decides whether to allow such activities to occur. To obtain the Corps' approval, the nonfederal public entity, like any other property owner, must submit a permit application that contains a description of the proposed project, including its purpose and location, and other information the Corps needs to evaluate how the project will affect wetlands and other federally regulated waters. Once the Corps receives all of the required information from the applicant, the permit review process begins. Some policymakers and others have expressed concerns that the Corps' permit process takes too long and has significantly delayed some public works projects. In 2000, the Congress included a provision in the Water Resources and Development Act (WRDA) to expedite permit processing for nonfederal public entities. Specifically, section 214 of the act authorizes the Secretary of the Army, after providing public notice, to accept and expend funds from nonfederal public entities--known as funding entities--to expedite the evaluation of permit applications that fall under the jurisdiction of the Department of the Army. As GAO reported in May 2007, these funds primarily go toward supporting the salaries of Corps program managers who will dedicate their efforts to reviewing the permit applications from funding entities. The act also requires the Secretary to ensure that the funds accepted will not impact impartial decision making with respect to permit approvals. The Secretary of the Army has delegated this authority to the Corps and, in turn, the Corps has delegated day-to-day responsibility for implementing the section 214 authority to its 38 districts, which have responsibility for processing permit applications.
The Corps has clarified the documentation that must be included in section 214 project files. GAO believes that the Corps has taken appropriate steps to ensure that the documentation that district officials include in project files will justify and support their permitting decisions. Specifically, the Corps has completed a checklist, or template, of the decision documents necessary to support its general, or nationwide, permitting process, and it tested this tool in some of its districts. The Corps has provided training on the section 214 authority. The Corps held training sessions in August 2007 and May 2008 at national conferences attended by all regulatory staff, during which the following topics relating to the section 214 authority were discussed and clarified: the revised guidance in draft form, expectations regarding impartial decision making and disclosure of decisions to the public, and the annual reporting process. The Corps has not fully implemented an effective oversight approach for the section 214 authority.
GAO-10-385R, Status of U.S. Army Corps of Engineers Efforts to Implement GAO's 2007 Recommendations Regarding Its Section 214 Authority
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GAO-10-385R:
United States Government Accountability Office:
Washington, DC 20548:
February 19, 2010:
The Honorable James L. Oberstar:
Chairman:
Committee on Transportation and Infrastructure:
House of Representatives:
Subject: Status of U.S. Army Corps of Engineers Efforts to Implement
GAO's 2007 Recommendations Regarding Its Section 214 Authority:
Dear Mr. Chairman:
When cities, counties, or other nonfederal public entities propose
public works projects that could degrade or damage federally regulated
waters and wetlands, such as road construction and sewer line
construction or maintenance, they must obtain a permit from the U.S.
Army Corps of Engineers (Corps) before proceeding. Under authorities
delegated to the Corps from Section 404 of the Clean Water Act,
[Footnote 1] the agency is responsible for regulating activities that
may impact wetlands, streams, and other waters throughout much of the
United States and it decides whether to allow such activities to
occur. To obtain the Corps' approval, the nonfederal public entity,
like any other property owner, must submit a permit application that
contains a description of the proposed project, including its purpose
and location, and other information the Corps needs to evaluate how
the project will affect wetlands and other federally regulated waters.
Once the Corps receives all of the required information from the
applicant, the permit review process begins.
Some policymakers and others have expressed concerns that the Corps'
permit process takes too long and has significantly delayed some
public works projects. In 2000, the Congress included a provision in
the Water Resources and Development Act (WRDA) to expedite permit
processing for nonfederal public entities. Specifically, section 214
of the act authorizes the Secretary of the Army, after providing
public notice, to accept and expend funds from nonfederal public
entities--known as funding entities--to expedite the evaluation of
permit applications that fall under the jurisdiction of the Department
of the Army. As we reported in May 2007,[Footnote 2] these funds
primarily go toward supporting the salaries of Corps program managers
who will dedicate their efforts to reviewing the permit applications
from funding entities. The act also requires the Secretary to ensure
that the funds accepted will not impact impartial decision making with
respect to permit approvals. The Secretary of the Army has delegated
this authority to the Corps and, in turn, the Corps has delegated day-
to-day responsibility for implementing the section 214 authority to
its 38 districts, which have responsibility for processing permit
applications.
In our May 2007 report, we reviewed Corps permitting activities using
the WRDA section 214 authority. As a result of this review, we
recommended that the Secretary of the Army direct the Corps of
Engineers to take the following four actions:
* clarify the guidance that the districts must follow when evaluating
permit applications under the section 214 authority,
* clarify the documentation that district officials must include in
project files to justify and support their decisions,
* provide training to district officials to ensure that they are aware
of the requirements that apply to permits processed under the section
214 authority, and:
* develop an effective oversight approach that will ensure that the
districts are following all the appropriate requirements when
evaluating projects under the section 214 authority.
When we first reviewed the Corps implementation of the section 214
authority at the end of fiscal year 2006, four districts were using
this authority and had executed agreements with 13 entities.[Footnote
3] At the end of fiscal year 2009, the program had expanded
significantly and 17 districts were using this authority and had
executed agreements with 36 entities. Total amount of expended funds
through these agreements in fiscal year 2009 was almost $4 million.
[Footnote 4]
The WRDA section 214 authority was originally set to expire at the end
of fiscal year 2003; however, this temporary authority has been
extended several times, most recently until December 2009. As the
Congress considers whether to authorize continued use of this
authority, you asked us to review the progress the Corps has made in
implementing our May 2007 recommendations.
To assess the Corps' efforts to implement our recommendations, we
reviewed the agency's policy and guidance documents, fiscal year 2008
and 2009 annual reports submitted to Corps headquarters by Corps
districts that are using this authority, and recommendation status
updates provided by the Corps to the DOD Inspector General. In
addition, we interviewed Corp regulatory program managers about steps
taken to refine guidance, train district officials, and oversee
participating districts' implementation of the WRDA section 214
authority.
We conducted our work from October 2009 to January 2010 in accordance
with all sections of GAO's Quality Assurance Framework that are
relevant to our objectives. The framework requires that we plan and
perform the engagement to obtain sufficient and appropriate evidence
to meet our stated objectives and to discuss any limitations in our
work. We believe that this information and data obtained, and the
analysis conducted, provide a reasonable basis for any findings and
conclusions in this product.
On November 9, 2009, we briefed your office on the preliminary results
of our review. As agreed with our office, we subsequently updated our
results to incorporate the most recent set of annual report
submissions from the Corps districts that are using this authority.
This letter summarizes the information presented in the briefing and
from our additional review and officially transmits the updated
briefing slides in the enclosure.
Corps Implementation of Our 2007 Recommendations:
We believe that the Corps has implemented three of the four
recommendations that we made in May 2007. For the one remaining
recommendation, while the Corps has taken some steps, we believe that
more action is needed for the agency to be fully responsive to our
recommendation. Specifically, we found the following.
The Corps has implemented our recommendation to clarify the guidance
that the districts must follow for section 214 permit applications. On
October 1, 2008, the Corps issued revised guidance that improves on
the prior guidance and addresses a number of the points we raised in
our May 2007 report.
* The revised guidance includes a list of acceptable activities for
which section 214 funds can be used and more explicitly describes the
circumstances under which funds can be accepted. For example, the
guidance now specifically states that funds can be accepted if (1)
they will expedite permit processing for the funding entity, (2) the
district can ensure decision making will be impartial and not affected
by receipt of the funds, and (3) accepting the funds will not slow
down evaluation of other permits.
* The section of the revised guidance related to accountability has
been revised, and additional items that need to be tracked and
reported to Corps headquarters on an annual basis are now delineated.
Additional items include performance metrics for evaluating the
effectiveness of the use of the funds and a statement certifying that
all project managers funded under the section 214 authority are aware
of and trained on the requirements contained in the guidance.
* The Corps also significantly expanded upon the requirements in the
guidance related to impartial decisionmaking. Specifically, under the
revised guidance, participating Corps districts are to ensure that all
documents involved in the decision-making process, including the
supporting documents and issued permit, are reviewed and approved by
someone at least one level higher than the program manager who is
funded by the authority. In addition, the guidance now requires that
all final permit decisions need to be updated monthly on the
district's Web page in an area separate from any other final actions
and that the decision be clearly identifiable as being for projects
funded through the WRDA section 214 authority.
The Corps has clarified the documentation that must be included in
section 214 project files. We believe that the Corps has taken
appropriate steps to ensure that the documentation that district
officials include in project files will justify and support their
permitting decisions. Specifically, the Corps has completed a
checklist, or template, of the decision documents necessary to support
its general, or nationwide, permitting process, and it tested this
tool in some of its districts.[Footnote 5] In addition, the Corps
recently completed a template for its standard permits decision-making
process that includes additional elements necessary to document
compliance with the National Environmental Policy Act and other
relevant statutes and regulations. As part of its efforts to develop
these decision document templates, the Corps completed an analysis of
all national permitting processes in December 2008 and incorporated
the results of this analysis into these templates to help ensure
consistent and complete support documentation. A Corps official said
that they intend to release these new templates for immediate use at
an upcoming executive regulatory seminar and branch chief annual
meeting. During these sessions, the official said that the templates
will be discussed and instructions on their use provided.
The Corps has provided training on the section 214 authority. The
Corps held training sessions in August 2007 and May 2008 at national
conferences attended by all regulatory staff, during which the
following topics relating to the section 214 authority were discussed
and clarified: the revised guidance in draft form, expectations
regarding impartial decision making and disclosure of decisions to the
public, and the annual reporting process. Furthermore, discussion of
the WRDA section 214 program was also included in the curriculum for a
development course to help train new regulatory chiefs. As part of its
dissemination efforts for the revised guidance, the Corps also sent a
memo to regulatory chiefs across all Corps districts and divisions
highlighting sections of the guidance where clarifications were made
that could impact the districts' implementation of the section 214
authority. Among the items highlighted were the increased annual
reporting requirements designed to improve the Corps' ability to
assess the program's impacts. In addition, Corps district commanders
now need to affirm that their program managers who are funded through
section 214 are fully aware of and trained on the relevant guidance.
The Corps has not fully implemented an effective oversight approach
for the section 214 authority. Although the Corps has taken some steps
to improve its oversight of the districts' implementation of the
section 214 authority since our May 2007 report, we believe that the
Corps has not yet fully implemented our recommendation. More
specifically, the Corps has taken some positive steps by expanding the
revised guidance with regard to impartial decision making and annual
reporting and by enforcing the submission of the annual reports.
Furthermore, the Corps has taken steps to ensure that the funds
identified as being from WRDA section 214 sources are tracked and
accounted for separately. However, the Corps' actions have fallen
short in two significant oversight areas: (1) ensuring the quality and
thoroughness of the annual reports and (2) improving the transparency
of decision making to the public by clearly posting public notices of
funding decisions on the district Web sites.
* Annual reporting. Although districts were to submit annual reports
describing their use of the section 214 authority since 2001, no
districts had done so until 2008. Our review of the fiscal year 2008
and 2009 annual reports, each due by November 1 of the respective
year, indicates that compliance with the reporting elements delineated
in the revised guidance has been uneven across the districts. While
almost all the districts complied with the requirements to include in
the report the amount, type, and source of accepted and expended funds
and an analysis of issues related to impartial decision making, few
districts included performance metrics and an evaluation of the
program's effectiveness. In addition, most districts confined their
assessment of the degree to which funds expedited the permit review
process to a brief qualitative discussion and only four districts
attempted to compute the actual time it took to process permits to
ensure that the program met the goal of expediting permit processing
for funding entities without negatively impacting evaluation of other
permit applications.
* Transparency of decision making. Under the Corps' revised guidance,
all WRDA section 214 funding decisions are to be posted online "in an
area separate from any other final actions, clearly identifiable as
being for projects funded by this authority." However, our review of
the participating districts' Web sites found that such postings were
not clearly and consistently done. As of January 17, 2010, while we
were able to locate section 214 agreements on the Web sites of 15 of
the 17 districts, not all of these were in accordance with the
guidance. Specifically, many were not in a separate area from other
actions or clearly identifiable as being related to the section 214
authority.
Agency Comments:
We provided the Corps with a draft of this report and obtained oral
comments at a meeting with a Deputy Chief for Regulatory Programs. In
commenting on the report, this official generally concurred with the
conclusions reached and said that the Corps is taking additional steps
to address the remaining recommendation to develop an effective
oversight approach. Specifically, the official stated that starting
with the fiscal year 2010 annual reporting cycle, the Corps will
require that districts submit their reports using a standard template
to ensure that each required element is being fully reported on. In
addition, the Corps headquarters will be instituting quarterly calls
with Corps division and district regulatory officials and section 214
WRDA program managers to discuss progress made in meeting section 214
performance measures, such as timeliness of the permit processing.
This official also said headquarters will continue to work with
district officials to ensure that information about WRDA section 214
agreements is posted clearly on the district Web sites and is easily
accessible by the public. In addition to providing information about
actions underway to address the recommendations, the Corps official
also provided technical comments, which we incorporated as appropriate.
As agreed with your office, unless you publicly announce the contents
of this report earlier, we plan no further distribution until 30 days
from the report date. At that time, we will send copies to interested
congressional committees, the Corps, and other interested parties. In
addition, the report will be available at no charge on the GAO Web
site at [hyperlink, http://www.gao.gov].
If you or your staff have questions about this report, please contact
me at 202-512-3841 or mittala@gao.gov. Contact points for our Offices
of Congressional Relations and Public Affairs may be found on the last
page of this report. Key contributors to this report were Elizabeth
Erdmann (Assistant Director), Janice Ceperich, Nancy Crothers, Carol
Kolarik, and Lisa Vojta.
Sincerely yours,
Signed by:
Ms. Anu K. Mittal:
Director, Natural Resources and Environment:
Enclosure:
[End of letter]
Enclosure: WRDA Section 214 Update:
Briefing for House Transportation and Infrastructure Committee:
November 9, 2009 (updated January 14, 2010):
Current Status of Section 214 Program: Positions, Agreements,
Entities, and Funding:
For each fiscal year, the number of fully funded positions, districts
using the section 214 authority, and entities with agreements is as
follows:
* FY2006: 10 positions across 4 districts; 13 entities;
* FY2007: 15 positions across 6 districts; 17 entities;
* FY2008: 39 positions across 12 districts; 30 entities;
* FY2009: 49 positions across 17 districts; 36 entities.
* Total amount of expended funds in FY2009 was almost $4 million.
(Figure excludes expenditures from 1 of the 17 districts that did not
supply such figures in their annual reports. Four districts reported
data for fiscal year of July 2008 through June 2009.)
GAO Recommendations in GAO-07-478:
To ensure that the permits processed under the section 214 authority
comply with federal regulations and guidance, we recommended that the
U.S. Army Corps of Engineers (Corps) take the following four actions:
(1) Clarify the guidance that the districts must follow when
evaluating permit applications under section 214.
(2) Clarify the documentation that districts must include in project
files to justify and support their decisions.
(3) Provide training to district officials to ensure that they are
aware of the requirements that apply to permits processed under the
section 214 authority.
(4) Develop an effective oversight approach that will ensure that the
districts are following all the appropriate requirements when
evaluating projects under the section 214 authority.
Status: Recommendation 1: Clarify guidance:
The Corps has implemented this recommendation.
The Corps issued revised guidance on October 1, 2008. A section by
section review demonstrates an improvement over prior guidance in a
number of significant ways:
* Expanded list of acceptable activities for funding.
* Additional language making it clear that the Corps can accept funds
if (1) they expedite processing of permits, (2) the district can
ensure impartial decision making, and (3) accepting funds will not
slow evaluation of other permits.
* Clarified the conditions a private entity can be involved in with
regard to submissions under a funded agreement.
Most significant changes made to ’Accountability“ and ’Impartiality“
sections of the guidance:
* Accountability: expanded list of items that need to be included in
annual reports. Now includes performance metrics used to evaluate
effectiveness of fund usage and a statement certifying that all funded
project managers are aware of and trained on 214 guidance.
* Impartiality: significantly expanded this section, including
clarification that (1) all decision documents and permits must be
reviewed and signed by a manager one-level-above reviewer, and (2)
final permit decisions need to be updated monthly on the district‘s
Web page in an area that is separate from other final actions and
clearly identifiable as section 214 authority.
Status: Recommendation 2: Clarify documentation to support decisions:
The Corps has implemented this recommendation.
The Corps completed a checklist/template of documentation necessary to
support:
* nationwide permits and has tested it in the Northwestern Division,
and;
* standard permits, including additional elements required to
demonstration compliance with the National Environmental Policy Act
and other statutes.
Templates will be released for use by all districts in February 2010.
Both templates are the result of a district-level analysis completed
in 2008, which helped ensure the development of consistent and
complete support documentation for all major permit categories,
according to the Corps.
Status: Recommendation 3: Provide training on section 214 authority:
The Corps has largely implemented this recommendation.
A training session was held in August 2007 at the National Regulatory
Conference for all Corps regulatory staff. According to the Corps,
during the session,
* draft revised guidance was discussed,
* expectations regarding impartial decision making and disclosure of
decisions to public was discussed, and,
* the annual reporting process was clarified.
Also, a training session on applicable section 214 guidance and draft
revised guidance was held at the National Regulatory Conference in May
2008 and at the pilot class of a new regulatory chiefs development
course. According to the Corps, the training focused on the guidance,
implementation, and performance related to the section 214 program.
E-mail announcement to all regulatory chiefs on October 1, 2008,
announcing and disseminating revised section 214 guidance. Message
highlighted sections of the guidance where clarifications were made
that could impact the districts‘ implementation of the program, such
as:
* Increased upward reporting requirements to improve their ability to
assess the program‘s impacts,
* Expanded impartial decision-making section to define procedures and
review requirements, and,
* Reaffirmation that all regulatory chiefs with funded section 214
positions will be required to certify that funded program managers are
appropriately trained on guidance.
Status: Recommendation 4: Develop Oversight Approach for 214 Authority:
This recommendation has not yet been fully implemented.
The Corps has taken some valuable steps, such as:
* Expanding the section of guidance that relates to impartial decision
making was expanded to be more explicit about who needs to review
documentation and permit decisions,
* Enforcing since FY2008, the requirement for all districts with
section 214 agreements to submit annual reports to Headquarters, and,
* Clarifying through a July 2008 memo to all regulatory chiefs the
accounting codes to be used to track reimbursable funds. A funding
code was specifically identified for section 214 funding sources.
However, we also found uneven compliance by the 17 districts with
agreements with the reporting requirements in the guidance for the
FY2009 reports submitted to Headquarters.
* While almost all districts complied with the requirements to include
the amount, type, and source of accepted and expended funds and an
analysis of issues related to impartial decision making, few districts
included performance metrics and an evaluation of the program‘s
effectiveness.
* Only 4 districts computed the actual time it took to process permits
to ensure that the program met the goal of expediting permit
processing for funding entities without negatively impacting
evaluation of other permit application.
According to the Corps, HQ‘s Regulatory Office conducts quarterly
checks on District Web sites to ensure that section 214 agreements are
clearly posted in accordance with the guidance.
* Our review on January 15, 2010, did not find this to be consistently
the case. We found agreements for 15 of the 17 District sites, but not
all would be qualified as being ’in an area separate from any other
final actions, clearly identifiable as being for projects funded by
this authority“ as the guidance states.
[End of Briefing Slides]
Footnotes:
[1] Section 404 of the Clean Water Act generally prohibits the
discharge of dredged or fill material into waters of the United States
without first obtaining a permit from the Corps.
[2] GAO, Waters and Wetlands: Corps of Engineers Needs to Ensure That
Permit Decisions Made Using Funds from Nonfederal Public Entities Are
Transparent and Impartial, [hyperlink,
http://www.gao.gov/products/GAO-07-478] (Washington, D.C.: May 16,
2007).
[3] From December 2001 through September 2006, nonfederal public
entities provided over $2 million in section 214 funds to the four
Corps districts with whom they had section 214 agreements.
[4] One of the 17 districts did not supply funding figures in its
annual report. Four districts reported data for their state's fiscal
year of July 2008 through June 2009.
[5] The Corps issues a number of different permits, each with its own
application and review process. General, or nationwide, permits are
for projects that are likely to have only minimal impacts on water and
wetland resources, and their review process is limited. In contrast,
standard permits are issued for projects that could have substantial
impacts on water and wetland resources; the review process for these
permits is more extensive.
[End of section]
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